DOL Should Issue Guidance Protecting Farmworkers

Farmworker Justice is writing in regards to the recent enactment of the Families First Coronavirus Response Act (FFCRA), Public Law No: 116-127. The FFCRA takes steps to try to address the COVID-19 pandemic while recognizing the impact this will have on our nation's workers. Included in the FFCEA are provisions addressing the needs of workers, including emergency paid sick leave and emergency family and medical leave.

Farmworker Justice is a non-profit organization whose mission is to empower farmworkers to improve their wages and working conditions, including U.S. workers and H-2A temporary foreign workers under the H-2A program. Farmworker Justice has a long history of research, policy advocacy, publications and litigation aimed at fulfilling this mission.

As the DOL takes steps to implement the FFCRA, we urge you to ensure that as many working people as possible are covered by the emergency paid sick leave and emergency family and medical leave provisions. For many workers, their ability to follow public health recommendations and government orders regarding isolation, quarantines and other necessary steps to contain COVID-19 will depend on their financial security and ability to obtain economic relief under these provisions.

Any guidance that DOL issues regarding covered employees and employers must address the need to ensure that farmworkers in the workplace remain healthy. In a March 19, 2020 Guidance Memo issued by the Department of Homeland Security, the vital role of agricultural workers during this pandemic (and beyond) is recognized as food and agriculture are designated "a critical infrastructure" sector.(1) As such, the guidance advises "If you work in a critical infrastructure industry … you have a special responsibility to maintain your normal work schedule." In order for farmworkers to fulfill their special responsibility to continue working, they must have access to paid sick leave and emergency family medical leave to care for themselves and family members and to ensure a healthy workforce.

Given the unique vulnerability of farmworkers to COVID-19, discussed further below, as well as the importance of maintaining a healthy agricultural labor force to our nation's food security, we urge the DOL to issue guidance that ensures, to the maximum extent possible, that farmworkers will be entitled to paid emergency sick and family leave. Under the Families First Coronavirus Response Act, the Department of Labor may exempt businesses with fewer than 50 employees from providing paid emergency family leave and paid sick leave if imposing the requirement "would jeopardize the viability of the business as a going concern." We urge you to narrowly construe this language. The language was carefully written to ensure that an exemption was only granted where the payment of benefits would jeopardize the ability of the business to continue operating. DOL should put guidance into place that allows individual businesses to seek an exemption if they meet this strict standard. DOL should not interpret this language to exclude particular industries or sectors as doing so would be contrary to the clear statutory language allowing such "imposition of such requirements would jeopardize the viability of the business as a going concern." In considering requests for exemptions from individual agricultural employers, DOL must recognize that there are multiple forms of relief available to agricultural employers, including the $9.5 billion disaster fund to help producers who are experiencing financial losses from the coronavirus crisis, $14 billion to fund the Farm Bill's farm safety net through the Commodity Credit Corporation, and $10 million in potential small business interruption loans. Meanwhile, for farmworkers, the paid sick and paid emergency family leave may be the only forms of financial relief available to many farmworkers.

In addition to the possible exemptions for businesses with fewer than 50 employees, the legislation also excludes employers with more than 500 employees. Many farms are part of complex corporate structures with multiple entities for different functions, and may also employ some workers directly while hiring others through farm labor contractors. Depending on the guidance issued, many farmworkers may fall within one of the exemptions for coverage.

There are roughly 2.4 million farmworkers who work day in and day out to plant and harvest the crops and care for the livestock we all rely on for our food security. Due to the living and working conditions of farmworkers, they are at particular risk for COVID-19 exposure and illness. Farmworkers face extreme economic hardship and, due to discriminatory exclusions, lack the social security net available to many other workers. According the DOL's National Agricultural Worker Survey, farmworkers' mean and median personal incomes during the 2015-2016 time period was in the range of $17,500 to $19,999.(2) The poverty experienced by farmworkers is exacerbated by recent closures of schools and child care centers, which may lead one parent to stay at home with the children, meaning a significant loss of the income. Alternatively, without paid leave, many farmworker parents may feel compelled to continue working because of economic need, meaning children may either be left home alone or brought to the fields, both of which are dangerous situations for the children and undesirable for the farms. If parents are forced to bring their children to the fields, children could be exposed to dangerous conditions such as pesticides, extreme heat, and mechanical equipment. Moreover, parents could lose productivity by needing to check on their children. Given the value of the agricultural workforce to our country's food security, it is urgent to ensure that farmworkers are able to provide for their family's financial security without added stress or danger to their families. Emergency paid family leave and paid sick leave are key to the ability of farmworkers to ensure their own health and safety, and that of their families.

The living and working conditions of farmworkers make them uniquely vulnerable to COVID-19 exposure and illness. Many farmworkers lack access to health insurance and health care, which is exacerbated by the under-resourced and overwhelmed health care systems in rural communities. Farmworkers also generally live in very crowded conditions, from mobile home parks to apartment buildings or barrack style housing. It is common for multiple farmworker families to share one dwelling. For example, 4 families may share a 3 or 4 bedroom house, with each family sleeping in one of the bedrooms or living room. Farmworker housing may also lack needed sanitation facilities. At some employer provided housing, there may only be shared bathrooms with inadequate facilities for washing. Moreover, farmworkers often carpool to their workplace, whether in a car, bus or van. These vehicles are typically crowded with multiple workers. These crowded conditions combined with limited access to health care and inadequate sanitation increase the likelihood of transmission of COVID-19 as it is difficult for farmworkers to self-quarantine.

Once at the workplace, under federal law, employers are only required to provide one toilet and hand washing facility for every 20 employees within one quarter of a mile of the worksite in the field.(3) This requirement is generally not enforced for farms with fewer than 11 employees.(4) Even when facilities are readily available, workers may be discouraged from taking bathroom breaks or to wash their hands frequently for the recommended amount of time. Workers may also work in close quarters with others in the fields, particularly where workers are following some kind of harvesting machine, or are working in packing or processing facilities. The close proximity of many farmworkers as they work combined with the lack of measures to ensure adequate sanitation leads to a greater exposure of agricultural workers to COVID-19 in the workplace.

For all of these reasons, it is of the utmost importance that any worker with any signs or symptoms of COVD-19 be encouraged to stay home and self-quarantine to the extent possible. Because of the economic insecurity of many farmworker families and because of a fear of being fired for missing work, many farmworkers will continue to work through illness, even in the face of an illness such as COVID-19. The push to continue working may be even more significant now with the designation of agriculture as a critical industry. In order to ensure the security of our agricultural workforce and food supply, we must ensure that farmworkers who are ill with COVID-19 or caring for an ill family member have the ability to take paid leave to recuperate and to prevent the infection of other co-workers.

As discussed above, it is critically important to the health and viability of our food system that farmworkers have access to paid emergency family and sick leave to ensure they are able to take care of their own and their families health needs. Farmworker Justice encourages DOL to implement this guidance in a way that ensures the broadest possible coverage of farmworkers to prevent the spread of COVID-19 among farmworkers and ensure the viability of our food system.

(4) The rider attached to the Labor, Health and Human Services, and Education Appropriations act is included within the OSHA allocation. The rider exempts small farms from enforcement of all rules, regulations, standards, or orders under the OSH Act. A farm is exempt if it currently and at all times during the last 12 months employs 10 or fewer employees AND it has not had an active temporary labor camp in the last 12 months. See Compliance Directive 02- 00-051, section x, available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1519#APPA.